* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 10 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. JIMMY T. DAVIS, Defendant - Appellant. No. 00-3377 (D.C. No. 00-CV-3202-WEB)

(D. Kan.)

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. STEPHEN G. HASLIP, Defendant - Appellant. No. 00-3380 (D.C. No. 00-CV-3263-WEB)

(D. Kan.)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges. **1 The Tenth Circuit court clerk raised a jurisdicti onal issue regarding the

timeliness of Mr. Haslip’s appeal and referred it t o the merits panel. The district court dismissed Mr. Haslip’s § 2255 motion on Septe mber 18, 2000. R. doc. 200. Mr. Haslip was therefore required to file a notice of appeal by November 17, 2000. Fed. R. App. P. 4(a)(1)(B); Fed. R. Gov. § 2 255 Proceed. Although Mr. Haslip’s notice of appeal was filed on November 24, R. doc. 208, his application for a COA was mailed to this court on November 17. We construe this - 2 - Messrs. Davis and Haslip (collectively “Petitioners ”) seek a certificate of appealability (“COA”) to appeal from the district c ourt’s denial of their habeas corpus motions brought pursuant to 28 U.S.C. § 2255. Petitioners were convicted of bank robbery, 18 U.S.C. § 2113(a), using or carrying a f irearm during the bank robbery, 18 U.S.C. § 924(c)(1), and possession of a firearm after a prior felony conviction, 18 U.S.C. § 922(g)(1). United States v. Davis , 166 F.3d 1222, 1999 WL 29160, at *1 (10th Cir. Jan. 26, 1999) (unpublished); Unit ed States v. Haslip , 160 F.3d 649, 652 (10th Cir. 1998). They were each sentence d to 322 months imprisonment, Davis , 1999 WL 29160, at *2; Haslip , 160 F.3d at 652, and ordered to pay $3,705.81 in restitution. R. doc. 159, at 4 (Davis judgment); R. doc.124, at 4 (Haslip judgment). After their convictions were affirmed on appeal, Davis , 1999 WL 29160, Haslip , 160 F.3d 649, Petitioners filed § 2255 motions indistrict court. R. doc. 189 (Davis motion); R. doc. 197 (Ha slip motion). The court denied the motions and also denied COAs. R. doc. 2 04, at 9 (Davis motion); R. doc. 200, at 7 (Haslip motion). Petitioners now ap ply to this court for COAs. 1application as a notice of appeal. Fed. R. App. P. 3(c). Smith v. Barry , 502 U.S.

244, 248-49 (1992). Mr. Haslip’s notice of appeal was, therefore, timely filed. Fed. R. App. P. 4(c).

- 3 - We have jurisdiction under 28 U.S.C. §§ 1291, 2253( c), and we deny COAs and dismiss the motions. Mr. Davis identifies the following issues which he believes warrant the issuance of a COA. First, he contends that the dis trict court lacked subject-matter jurisdiction to try and convict him under 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e)(1) because the Government did not present ev idence to the Grand Jury that Mr. Davis “received the weapons as they traveled [i n] interstate commerce,” an element of a § 922(g)(1) offense. Davis COA App. at 5-6, 7. Second, Mr. Davis argues that the indictment was defective because th e “entire language of . . . 18 U.S.C. § 2 (“Aiding and Abetting”) was omitted fromCounts One, Two, and Four . . . .” Id. at 6, 8. Third, Mr. Davis contends that the resti tution order was unconstitutional because the district court allowedthe Federal Bureau of Prisons to deduct payments from Mr. Davis’ s account under the Inmate Financial Responsibility Program. Id. at 11-12. Mr. Davis argues ineffective assistance of counsel as cause excusing his failure to raise eachof these claims on direct appeal. Id. at 10-11. Fourth, Mr. Davis asserts that counsel was also ineffective for failing to present a diminished capacity defens e and request a competency2 Specifically, Mr. Haslip argues that the photo lineup was suggestive because

witnesses could not identify Mr. Haslip as the robb er immediately after the robbery, and were only able to conclude that Mr. Ha slip’s photograph was “similar” to the robber. Haslip COA App. at 16. M r. Haslip also argues that the photo lineup was unduly suggestive because “Falls R iver State Bank,” the name of the bank robbed, was written across the page andhappened to appear above Mr. Haslip’s photograph. Id. - 4 - hearing. Id. at 13-16. Finally, Mr. Davis argues cumulative er ror on the part of trial counsel. Id. at 3. Mr. Haslip has identified the following issues in h is COA application. First, he argues that he was denied substantive due process under Apprendi v. New Jersey , 530 U.S. 466 (2000), because “the indictment fail ed to allege key elements[:]” interstate commerce, Haslip COA App. at 3, prior convictions, id. at 6, 9, and the statutory language for aiding and abe tting. Id. at 9. Second, Mr. Haslip alleges that he was deprived of effective as sistance of counsel because counsel did not move to dismiss the indictment on these grounds, id. at 3, 9, and that counsel’s deficient performance excused his fa ilure to raise this issue at trial or on direct appeal. Id. at 5-6, 12, 14. Third, Mr. Haslip asserts that t rial counsel was ineffective for failing to move to supp ress pre-trial identification of Mr. Haslip in a photo lineup and that appellate cou nsel was likewise ineffective for not raising this issue on appeal. 2 Id. at 3, 15. Fourth, he argues that the district court “may not delegate to the bureau of p risons’ inmate financial responsibility program the judicial authority to se t the amount of restitution- 5 -

installment payments.” Id. at 3 (emphasis omitted); see also id. at 19. Again, Mr. Haslip argues that ineffective assistance of counse l excused his failure to raise this issue on direct appeal. Id. at 20. Finally, Mr. Haslip contends that he was deprived of effective trial counsel insofar as coun sel “failed to submit vital evidence of one of the prior convictions.” Id. at 4, 21. We have reviewed the motions, the district court or ders denying the motions, the COA applications, and the record. Hav ing done so, we deny Petitioners a COA. As a preliminary matter, we wil l not consider Petitioners’ claims that the indictment was defective because th e statutory language for aiding and abetting was omitted. Petitioners did not rais e the claims below. Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). For this sam e reason, we do not consider Mr. Haslip’s final claim that co unsel failed to present important evidence pertaining to a prior conviction

. The remaining claims in Mr. Davis’s application do not warrant the issuance of a COA. 28 U.S.C. § 2253(c)(2). The go vernment was required to show only that Mr. Davis possessed a firearm “in oraffecting commerce . . . .” 18 U.S.C. 922(g). Mr. Davis does not argue that th e government failed to make this showing. Further, the district court’s restitution order wa s proper because Mr. Davis was ordered to pay restitution immediatel y. R. doc. 159, at 5 (Davis judgment). Mr. Davis’s arguments of ineffective co unsel are meritless; he was- 6 -

not prejudiced by counsel’s failure to raise the ar guments before the court, Strickland v. Washington , 466 U.S. 668, 687, 694 (1984), and the claims are therefore procedurally barred. United States v. Co ok , 45 F.3d 388, 392 (10th Cir. 1995). A diminished capacity defense would have been, as t he district court observed, “inconsistent with Davis’ primary defense at trial—that he was not present during the bank robbery.” R. doc. 204, at 8; see also Davis , 1999 WL 29160, at *3-4. Nor has Mr. Davis shown, with reas onable probability, that a diminished capacity defense would have produced a d ifferent outcome. Strickland , 466 U.S. at 694. We reach the same conclusion wi th respect to counsel’s failure to request a competency hearing at trial. After trial, Mr. Davis was found competent to stand trial, and we affirmed this finding on appeal. Davis , 1999 WL 29160, at *5-6. Finally, because trial counsel was not ineffective, there was no cumulative error. Mr. Haslip’s claims are equally without merit. The grand jury found that Mr. Haslip possessed a weapon in and affecting inte rstate commerce. R. doc. 39, at 3. Moreover, Apprendi “is not applicable when the sentence-enhancing fac t is a prior conviction . . . .” United States v. Marti nez-Villalva , 232 F.3d 1329, 1331 (10th Cir. 2000). The restitution order was also p roper because Mr. Haslip was ordered to pay restitution immediately. R. doc. 12 4, at 5 (Haslip judgment). Mr.- 7 -

Haslip was therefore not prejudiced by counsel’s fa ilure to move to dismiss the indictment on these grounds, Strickland , 466 U.S. at 694, and these claims are procedurally barred. Cook , 45 F.3d at 392. Mr. Haslip’s ineffective assistance of counsel clai m relating to pre-trial identification is also without merit. The districtcourt docket sheet reflects that counsel in fact moved to suppress the photo lineup. R. doc. 200, at 5 (citing R. doc. 30). Mr. Haslip has not convinced us that the pre-trial identification procedures were so suggestive or unreliable (if at all), United States v. Bredy , 209 F.3d 1193, 1195 (10th Cir.), cert. denied , 531 U.S. 897 (2000), as to constitute a “dead-bang winner,” i.e., error requiring reversal on appeal. Cook , 45 F.3d at 395. Accordingly, we DENY Petitioners COAs and DISMISS the petitions.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge